Recently, my friend and U.S. Congressman Trey Gowdy spoke about the Rule of Law, specifically with respect to the President’s recent Executive Order regarding Immigration. With gridlock in D.C. being the norm, expect to hear a lot more about Executive powers. For example, commentators are suggesting Roberts is looking at approving some aspects of Obamacare under Executive interpretation powers, therefore, leaving those aspects up for elimination under a new administration. For 50-75 years, it has been expected that Executive interpretations of regulatory matters delegated by Congress would change when a different party occupies the White House.
In legal circles, this is the manifestation of what is known as Chevron deference, which gives the Executive branch power / discretion to interpret any ambiguities in a statute and enact regulations implementing their preferred interpretations (in theory eliminating the ambiguity). In effect, by this doctrine, the Executive branch gets the power to do what the Judicial branch normally does (i.e., interpret the law). Then, when parties come before the Judicial branch for resolution of their disputes related to the Executive interpretation in a regulation or in a policy statement or a guideline, the Judicial branch is obligated under Chevron to accept the Executive interpretation, as long as it is reasonable. As noted in the Roberts link above, the Judicial branch could then be obligated to accept two different interpretations resolving the same statutory ambiguity.
By now non-lawyer readers understand why we have so many lawyers, particularly in Washington, D.C.
As anyone involved in law or negotiating can tell you: playing with principles is a double edged sword. Decisions made by one side of an issue may come back to bite with even greater effect when they are out of power (as in politics), or when the tables are turned (as in litigation). In politics, a person or party’s actions on an issue may define their career or hang around their necks like a millstone. In litigation, most likely credibility of the lawyer is at stake. In either instance, precedent is being established in some form.
One could argue we have too many laws in the United States, and perhaps we do. Just recently, we wrote about the interplay between two statutes regarding land sales contracts, namely the Statute of Frauds (“SOF”) and the Uniform Electronic Transactions Act (“UETA”), however, compared to many decisions our courts have to make, that was a rather simple analysis. This is mainly because the UETA was enacted after the SOF and did not create an exception for the SOF. The greater difficulties come in interpreting multiple statutes, for example, when Congress or a state legislature did not even consider (or foresee) the potential interplay between the new law and the old. Either way, precedent is established. Also, what comes into play in establishing precedent is procedure, for example, by what standard will the appellate court review the lower court decision? De Novo, Abuse of Discretion, Substantial Evidence, Clear Error. Complex statutory schemes, such as the patent law, must be interpreted in view of altogether new technologies not contemplated when the laws were enacted. For example, the law with respect to business method patents seems to stay in a state of confusion and de novo review of the legal issues creates a tension between the U.S. Supreme Court and the Federal Circuit.
Healthcare and tax laws and administration of each are so complicated in this country, families need a forensic accountant to discern and advise on their rights to reimbursements, much like we have been doing for years in interpreting the tax code. In reading Professor Nathan Crystal’s 2014 Legal Ethics Review in S.C. Lawyer magazine recently, I see that the rules of conduct governing lawyers require us to know all about social media, particularly with respect to contacts with third-party witnesses and jurors. This includes not just Facebook, Twitter, and LinkedIn, but also Instagram, Pinterest, SnapChat and whatever new outlet came out this week. As many of you know, the rules and options available on these social media outlets often change and the electronic data accumulated there is staggering.
There is an abundance of reasons why the rule of law can be improved. For example, the time for decisions could be / should shorter and less expensive to attain. Efforts are underway in many places to changes the way disputes are resolved, for example by summary jury trials as recently advocated by Warren Moise, Esq., but change is like molasses – slow in coming, as institutionally generations of lawyers become familiar with the way it has always been done. Yet, as Americans, at least we have the rule of law and have the opportunity to improve upon its application, and to fight to continue to ensure it has meaning and that it makes a difference, because it does.
In contrast, take a few moments to learn about the recent death of Boris Nemtsov in Russia. See also @PartsUnknownCNN
Russia, which was once marching toward democracy, is now crying out for liberty and opportunity. Unspeakable Middle Eastern atrocities abound with troubling regularity. Boko Haram, ISIL, ISIS to name a few.
What differentiates the United States from these countries? The Rule of Law.
We all, especially lawyers, need to respect and fight for the rule of law while it still with us.
Legal Links: MEDIUM– 1 case, commentary on standards of review
Technical Stuff: e-DISCOVERY AND SOCIAL MEDIA REFERENCES
History: VERY LITTLE
Pontificating: MEDIUM HEAVY
ShamelessTwitterLinking: one but no shame